December 28, 2005

As we learn more about what was going on under the Bush administration's secret surveillance program, it's clear the National Security Agency has developed some powerful new tools against terrorist adversaries. That's all the more reason these innovative spying methods should be brought within the rule of law -- so that they can be used effectively and legally.

That should be a New Year's resolution for Congress and the administration: Amend our laws on surveillance to establish a framework for using these new techniques of collecting and analyzing information....

Although the headline has been "warrantless wiretapping," the Times accounts suggest the program actually was something closer to a data-mining system that collected and analyzed vast amounts of digitized data in an effort to find patterns that might identify potential terrorists....

This is the kind of innovative technology the government should be using, with appropriate safeguards. It employs computer algorithms to discern patterns that would probably be invisible to human analysts. It searches electronically amid the haystack of information for the one dangerous needle. In the phrase that was often used in the scathing Sept. 11 post-mortems, it seeks to "connect the dots."

So, an important new technique is being used, it seems, and it doesn't correspond very well to the activities Congress has attempted to regulate in the past. Rather than dwelling on whether it agrees with the President's legal interpretation of the existing legal texts, Congress ought to design the right legislation that clearly supports the beneficial and nonabusive use of the new techniques.

UPDATE: Marty Lederman participates in the comments, citing this post of his over at Balkinization, and I try to respond.

The article seems to be saying to this paranoid mind that the administration should stop their innovative but illegal activities and get them within the law.I don't like it's tone. I smell impeachment wishing, not assistance.

Speaking of "traffic analysis", do you (Ann) ever do your own analysis concerning which of your blogs, by category, prompts the most comments? It appears that politics and religion brings out a lot of commentators, while "intellectual pursuits" (poetry, writing, etc) bring out fewer. Comments on daily life seem to be somewhere in the middle. But have you ever broken it out more than that?

Defenders of President Bush’s secret spying program argue that it would have been impractical for the administration to seek amendments to Foreign Intelligence Surveillance Act (FISA) in the weeks after 9/11. Here’s Bill Kristol in the most recent issue of the Weekly Standard:

Was the president, in the wake of 9/11, and with the threat of imminent new attacks, really supposed to sit on his hands and gamble that Congress might figure out a way to fix FISA, if it could even be fixed?

The fact is the administration sought, and received, major amendments to FISA just weeks after 9/11 through the PATRIOT Act.

Rather than dwelling on whether it agrees with the President's legal interpretation of the existing legal texts, Congress ought to design the right legislation that clearly supports the beneficial and nonabusive use of the new techniques.

Reality Check: This was not a one time event that occurred in the aftermath of 9/11. The Administration has signed over 30 extensions to this act in a war on terror that they admit will last decades. When will the Administration take the time to go to Congress? Oh, yeah, they already did, just after 9/11 and Congress explicitly denied them what the changes seeking. In the face of Congress' denial, the President broke the law, and did so over 30 times. He then lied to the people about his acts, and as recently as last week, bragged to the people that not only had he broken the law just after 9/11, but that he continuing to do so.

Ann, come on. Just when do you believe the President need to comply with a law?

This another of your partisan rants clothed in your constitutional law professor rags. But apparently Orin Kerr, and other conservative constitutional law professors that have written legal analyses of the issue disagree with you.

Is this going to continue as one of these "I refuse to spend the time to analyze the issues but I will continue to defend the President" events that you are becoming infamous for?

"...Congress ought to design the right legislation that clearly supports the beneficial and nonabusive use of the new techniques."

Ann, I wonder if technologies like these can be widely used in a nonabusive manner. The temptation to use this type of snooping on one’s political enemies, combined with the utter secrecy under which they must necessarily be used seems to imply abuse.

Combine that with the signs that the Bush administration is using national security as a political tool, and I think we have a recipe for disaster. Consider one incident reported in Washington Monthly, found at:

I know that WM is farily liberal, but Kevin Drum quotes Washington Post with some pretty damning evidence that Cheney refused to fortify the nation’s chemical sites simply because he didn’t want to give EPA more power. What do you think about this passage:

--------------------------------------TAKING TERRORISM SERIOUSLY....Part 1 of a multi-zillion word story about the trials and tribulations of the Department of Homeland Security is running in the Washington Post today, and a lot of it is pretty much what you'd expect: a huge new agency trying desperately to deal with turf wars, lack of leadership, and budget issues. But they also had to deal with political cronyism, as Tom Ridge and Christine Todd Whitman discovered:One stark example was the White House's blockade of a Ridge-supported plan to secure large chemical plants. After Sept. 11, Whitman had worked with Ridge on a modest effort to require high-risk plants — especially the 123 factories where a toxic release could endanger at least 1 million people — to enhance security. But industry groups warned Bush political adviser Karl Rove that giving new regulatory power to the Environmental Protection Agency would be a disaster."We have a similar set of concerns," Rove wrote to the president of BP Amoco Chemical Co.In an interagency meeting shortly before DHS's birth, White House budget official Philip J. Perry, who also happens to be Cheney's son-in-law, declared the Ridge-Whitman plan dead."Tom and I would just throw our hands up in frustration over that issue," Whitman recalled.This is the most infuriating aspect of George Bush's approach to terrorism: that he treats it as a partisan weapon instead of a genuinely serious business. Chemical plants really are a prime target for terrorists, but Dick Cheney doesn't want to annoy his corporate pals, so EPA's plans to address it get shelved. WMD counterproliferation really is important, but it's not very sexy and doesn't serve any partisan ends since Democrats support it too. So it's ignored and underfunded. Detention of enemy combatants when the enemy is an amorphous group like al-Qaeda is a genuinely vexing issue that deserves a serious bipartisan airing, but the Justice Department treats it like a child's game, inviting barely concealed rage from a conservative judge who thought this was supposed to be life-and-death stuff.One of the worst results of all this is that because George Bush treats terrorism mostly as a handy partisan club to make Democrats look weak and cement his own support with his corporate base, he's managed to convince a lot of liberals that the whole thing is just a game. Unfortunately, this is pretty understandable. At this point, I don't really blame liberals for feeling that terrorism is little more than a Republican bogeyman that's pulled out whenever the president's poll numbers are down. After all, that's pretty much how Republicans treat it.But it's not. Osama bin Laden really would like to find a way to kill a whole bunch of us, and we really should all be working to keep that from happening. Maybe someday Karl Rove will figure out that that's more important than bringing back the glory days of William McKinley and his 30-year Republican reign.--------------------------------------

Our country’s chemical plants are still woefully underfortified, and it appears to be largely because of a dangerous political game the Bush administration is playing with our safety. You want to give these same people access to every private communication in the country? I think you should seriously reconsider that idea.

Paul: Ignatius assumes that what the Administration is doing is illegal. I disagree with the assumption. But I think Congress should move quickly to make the legality of the data mining technique plain.

Ricardo: I notice that if I just provide a place too talk about the war, people will go off and running in the comments. It's not necessarily what I said, but that people have a lot that they want to say. For this reason, I don't take the number of comments as a measure of how much people appreciate what I had to say. For some reason, my readers don't tend to use the comments just to say "nice post" or whatever.

Thanks, Ann. Not that I'm a conspiracy theorist, but I had been wondering to what extent you might be purposefully provoking people to speak out. And you answered the question. Actually, one of the interesting things about your blog, is that it shows the great diversity of your mind. A garden with many kinds of flowers.

I think most people are generally confused about what data mining does and how its used. Having worked for several years in database marketing, I can tell you that data mining is not the same as surveillance at all.

Surveillance is focused on tracking specific individuals; data mining is focused on aggregating behavioral and transaction data to develop correlations between past behavior and future actions. The focus is not on the individual, but on events as predictors.

If I sell fancy computer microphones, I want to market to poeple with characteristics that predispose them to buy my product - educated, tech-savvy podcasters with disposable income. I don't care that Ann is on that list because I'm not looking for Ann - I'm looking for data that indicates a likelihood to purchase my product.

People don't realize how much data is already out there on all kinds of computers, and how much it's being used already. If the government can use data mining to help stop terrorists (with appropriate safeguards), good for them - and us.

Ricardo: I don't say things I don't mean just to provoke people, if that's what you're thinking. Sometimes I post on provocative topics where I don't have much of an opinion though, because I think it's a good topic.

Ann: You write that the NSA program "doesn't correspond very well to the activities Congress has attempted to regulate in the past." I'm not sure whether that's intended to be a euphemism or not. The NSA program doesn't "correspond" to the forms of electronic surveillance that Congress has *authorized* in FISA. But Congress and the President did, in fact, debate this very issue over many years, with much compromise and back-and-forth, and they jointly decided that this form of surveillance *is unlawful.* That is to say, the statutes clearly and carefully set out a handful of circumstances in which warrantless surveillance is authorized (none of which is apposite here), and then state unequivocally, *twice*, that all other forms are illegal. See 50 USC 1809 and, especially, 18 USC 2511(2)(f).

You also write that "rather than dwelling on whether it agrees with the President's legal interpretation of the existing legal texts, Congress ought to design the right legislation that clearly supports the beneficial and nonabusive use of the new techniques."

Why not both? I agree wholeheartedly that the question of whether FISA should be amended to permit this sort of data-mining and, if so, what protections should be put in place to prevent abuses, is a *very* important debate to be having. But why does that preclude first (or simultaneously) investigating whether the President has decided to treat our constitutional form of government with contempt by authorizing conduct that is plainly unlawful?

In this respect, please permit me to repeat here what I blogged earlier today (http://balkin.blogspot.com/2005/12/nsa-euphemism-watch-part-2.html):

It's not as if Congress, when it enacted FISA, was insensitive to the fact that more aggressive forms of electronic surveillance might be necessary or desirable in times of war. To the contrary, FISA is one of those rare statutes that expressly contemplates that the rules for Executive conduct might need to be altered during wartime. The statute provides that "[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. 1811.

Why does the statute permit warrantless surveillance for only the first 15 days of a war? After all, the need for intelligence ordinarily will be just as great throughout the war, not only during its first 15 days. The answer is that 15 days was deemed sufficient to give the President the opportunity *to ask Congress for a statutory amendment.* As the Conference Report explained: "The Conferees intend that this [fifteen-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter.” H.R. Conf. Rep. No. 95-1720, at 34 (1978).

The Bush Administration could have, but did not, take advantage of the 15-day window for legislative change that Congress specifically inserted in FISA (perhaps because it was informed that an amendment to allow this sort of data-mining would have been a political nonstarter -- see http://balkin.blogspot.com/2005/12/definition-of-audacity.html). Instead, it simply decided to violate the law. Isn't that choice to bypass the democratic process a bit disconcerting, even if one thinks, as you do, that perhaps FISA needs to be rethought?

The 15 day time period contemplates criminal prosecution, it does not contemplate the monitoring of ongoing outbound or inbound communications from a foreign enemy.

All presidents since FISA was passed have explicitly stated that FISA does not limit the president's authority.

FISA is a political compromise. COngress has said through FISA that if the president follows those rules they won't "get mad." and effectively won't have the grounds to impeach the president. However, the Congress cannot take away the president's constitutional authority to fight enemies of the United States here or abroad. As long as the President's searches are "reasonable" they are within the law.

Congress can impeach the president if they want to, but a future executive cannot put the president or his subordinates in prison for these warrantless searches.

This is why it is wrong to argue that the searches are "illegal." They are perfectly legal. We will find out if they were politically viable.

A number of people have some sense of how much data is out there and are concerned that it is in private hands. For example google's revelation that it has saved every query along with originating ISP number is disturbing to lots of us.

There are desires to rein in the private sector.

And the collection of facts and putting them into databases is surviellance. The fact that this is done automatically and is now "natural" doesn't mean that is functionally different than following someone and seeing what they buy.

Of course the former would be illegal. Tapping phones without warrant would not be.

According to speculation NSA has turned it's collectors and screening methods on domestic communications.

This could mean anything you spoke on the phone or wrote by email could have been picked up and scanned. And certainly an effective data mining system would archive some or much or all of what's grabbed because at some point the apparently innocent messages of x could prove to be part of an important pattern.

I don't think the laws governing this are easy to devise and certainly they must be tested publicly. In the worst case scenerio the communications of millions of Americans are now stored and can be "mined" for useful information decided by the officers involved in various investigations or projects with unknown supervision.

The assumtion of those who find no concern in this *may* be happening is that said officers *would* never in any way abuse the power this gives them.

Implicit in this is the assumption that we can now mine the data for words like dope or el nortes or any other set of words designed to ferret out undesiribles.

Of course the hope is that the behavior is on a much milder and more innocent scale, but there is cause for concern.

Ann: No, that's not what I meant. I only meant it in a good sense. You have a lot of "power" in the mere fact that YOU are selecting the topics. And I was just interested in what was behind that. Were you picking topics because they just caught your fancy, because the ensuing discussion helped to clarify your own thoughts on a topic (it does, for me), because you thought your readers might simply be interested? Or some combination of these, or other, reasons? I wasn't impugning your motive. Actually, I was paying you a compliment on the scope of your blog, and wondering "why" (aloud it seems) certain topics generated so much discussion. I'll go to the back of the room now, and be quiet.

Marty: Thanks for commenting! I have to say that I haven't studied FISA in any depth and can't answer a lot of your questions with expertise, but I can say that "whether the President has decided to treat our constitutional form of government with contempt by authorizing conduct that is plainly unlawful" is a very slanted way to pose the question. The President made an interpretation of the law that makes at least some sense. Members of Congress may very well take a different interpretation, both because they are opponents of the President and because they have a different perspective on the allocation of powers between the two branches. I see no reason to force this into "Jackson's category 3" (a direct clash between the two branches), and it doesn't seem especially productive to do this. (Why isn't it midway between category 1 & 2, like what President Carter did to resolve the Iranian hostage crisis, approved by the Court in Dames and Moore?) What is important, and what I want to emphasize, is adjusting the statutory law so that what should be done can be done.

I will say that if technology has advanced to the point where we need to write new laws, then I have no problem with writing them. The idea of 'data mining' is something I'm uncomfortable with since it by definition involves at least a search of people who there is no reason to suspect. It is in effect no different than, for example, stopping every single car at a checkpoint to check for drugs even when there is no reason to suspect that there are any (which is unconstitutional).

sloanasaurus:

Executed for treason. Would you also support this for the Plame leaker? Especially since Bob Novak himself, the conservative columnist who first published the story, recently broke his silence and pointed the finger right back at President Bush. IF he knew who the leaker was and denied it, then would you suggest that the leaker and/or the President face this penalty?

Also, for those pious souls on the right who want to excuse the President for failing to abide by the law in this case, I have a couple of quotes:

"This nation sits at a crossroads. One direction points to the higher road of the rule of law. Sometimes hard, sometimes unpleasant, this path relies on truth, justice and the rigorous application of the principle that no man is above the law. Now, the other road is the path of least resistance. This is where we start making exceptions to our laws based on poll numbers and spin control. This is when we pitch the law completely overboard when the mood fits us, when we ignore the facts in order to cover up the truth.

No man is above the law, and no man is below the law. That’s the principle that we all hold very dear in this country."

-- Tom DeLay

It's just a concern for the Constitution and a high respect for the rule of law. ... as a lawyer and a legislator for most of my very long life, I have a particular reverence for our legal system. It protects the innocent, it punishes the guilty, it defends the powerless, it guards freedom, it summons the noblest instincts of the human spirit.

The rule of law protects you and it protects me from the midnight fire on our roof or the 3 a.m. knock on our door."

-- Henry Hyde

"I will have no part in the creation of a constitutional double-standard to benefit the President. He is not above the law. If an ordinary citizen committed these crimes, he would go to jail."

-- Bill Frist

All spoken in 1998.

No, I have a name for people who chose to blister and even go so far as to impeach the President for lying about sex, because he BROKE THE LAW, but who today defend the right of the President TO BREAK THE LAW, and over a much more serious matter. The name is hypocrites.

[and before anyone asks, I am consistent-- in both cases it is wrong, and in neither case does it warrant impeachment, although Bush comes closer since your civil liberties are much more important than finding out what Monica may or may not have done with a cigar.]

the collection of facts and putting them into databases is surviellance.

I understand concerns about privacy, but this is overreaching. When Amazon records what products I purchase or review and uses that information to customize how it advertises to me, that is not surveillance. No one at Amazon cares who I am. They are interested in what I buy only in that it helps them predict what else I might buy. That is fundamentally different from someone following me around because they're interested in me.

Data mining is different from surveillance because surveillance is focused on tracking the activities of a particular individual. Data mining uses aggregate data from potentially millions of people to detect patterns that predict behavior. And if the government can use that technology to identify communication and transaction patterns that lead to terrorist activity, I think that's good for all of us (except the terrorists).

If you don't want Google to know what you're interested in, don't use it. But courts have recognized the right of businesses to keep information about customers and transactions. Google is a business, not a public utility.

Yes, it's possible that some hacker could break in and steal data. Someone at Amazon could have it in for me and look up embarrassing information. But those are risks in any system. Remember the errant FBI files in the Clinton administration? Why does technology or computer-based data make this any more worrisome than old-fashioned paper-based snooping?

Thanks, Ann. I agree that my characterization of the President's actions here was "slanted" -- but not unfair, I think. The President's (i.e., DOJ's) interpretation of the AUMF and FISA does *not* make any sense. I've tried to show why not in some of my posts on Balkinization; but I'll have a more detailed explanation next week.

I'm confident that, if you did look carefully at FISA and the AUMF, you would agree, and that you would give very low marks to a student who offered DOJ's statutory construction in a paper or on an exam. DOJ ignores, for instance, the specific wartime provision of FISA that I discussed in my previous comment, which can't be reconciled with its reading of the AUMF. Moreover, it does not even bother to explain how the AUMF can be said to have repealed by implication 18 USC 2511(2)(f), which provides that FISA (and a couple of other statutes not relevant here) "shall be the exclusive means by which electronic surveillance . . . may be conducted."

For these and other reasons, virtually every legislator was shocked and offended when the Administration claimed that Congress had blown a huge hole through the carefully crafted scheme of FISA when it authorized the use of force against Al Qaeda. That notion was counterintuitive for a very good reason -- because it's not plausible.

More later, I suppose. I hope that *if* you come to feel, as I do, that this was anything but a *faithful* execution of the law -- even if well-intentioned -- that you will also agree that Congress ought to take very seriously the Administration's systematic disdain for the lawmaking process, *in addition* to the question of amending FISA.

Ann, just as the late 90s were the gold rush of my career, in terms of internet innovation, so this administration will represent the biggest source of issues for the Constitutional Law Professor in your career. Growing up through Vietnam, witnessing Watergate, no other time in your career will be as ripe for issues as the Bush Administration. It is profoundly dumfounding to me that you would sit on the sidelines saying that you don't have the time or inclination to look deeply at the issues. More puzzling that having confessed that, you would still feel good enough to make shallow and partisan comments.

This is your time Ann. Later on will you regret the things you could uniquely participate in but chose not to?

Good quotes and comments. But I'll quibble with you on data mining on a couple of points.

First, take your drug stop situation, but assume the government uses a device that can determine who is carrying illegal drugs without even stopping them. Would that be illegal surveillance? If so, how is that different from police using radar on everyone to detect the speeders?

Second, we already search every single person - without cause - before they can board a plane. Why is this not unconstitutional?

We're in new territory here in terms of the stakes for defending against terror, the available technology, and the potential for abuse. I think part of the problem is disagreement over how to apply a law which couldn't foresee modern technology and circumstances. All this will have to be worked out through public debate and discussion.

P.S. Clinton was impeached (which I thought was wrong) in the House not for cheating but for perjury and obstruction of justice. If Bush has broken the law, that's also wrong - but at least it would have been in defense of America, not just himself.

To all the Bush lied/he's a criminal bunch here. Which has the most likely chance of a ruinous deprivation of some of our civil liberties? That NSA may have intercepted one of our phone calls or that Marriott misplaced all the personal ID, credit and social security information for 200,000 of us?

It seems to me that the average American has more common sense than the average NYT reporter. It also seems that folks like the DLC are very concerned that the Congressional Dem leadership is getting out in front of this story.

December 28, 2005--Sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. A Rasmussen Reports survey found that just 23% disagree.

Sixty-eight percent (68%) of Americans say they are following the NSA story somewhat or very closely.

Just 26% believe President Bush is the first to authorize a program like the one currently in the news. Forty-eight percent (48%) say he is not while 26% are not sure.

In the case of radar traps, most police officers will tell you that they only bother to get readings on vehicles which look like they might be speeding-- if you are clearly puttering along and not speeding, they won't bother to point it at you. So in this case, there is reasonable cause-- the police officer observes that the vehicle appears to be travelling at a high rate of speed.

Good point about screening passengers at planes (I hadn't thought about that one).

Of course, that brings up something that ultimately goes to the heart of this controversy (everything else is window dressing): I think that some of the stuff they have implemented post 9/11 at airports is politically motivated and vindictive-- I am thinking in particular of the 'no-fly' list, which some Republican trickster apparently put Senator Ted Kennedy's name on, as well as a friend of mine who has given money to John Kerry as well as to NORML, but who has never had any terrorist links but ended up on the 'no-fly' list anyway-- and the worst part being, you can't even find out if you ARE on it until you show up at the airport with your ticket in hand and they tell you that you can't get on the plane-- in the case of my friend, they were 'generously' willing to let his wife get on the plane without him (that would have made it a heck of a vacation, for her). And when you are on that list, they may interview you at the airport and having determined you are not a threat allow you to take a later flight, but they don't remove your name from the list (Sen. Kennedy got hit like five times with it, and as far as I know, his is the only name actually removed from the list after his travel delays became a political embarrassment for the administration-- probably because they came to close to revealing how arbitrary, capricious and unrelated to reality, the list is).

And that is what makes me leery about data mining operations-- you may not have learned about the abuses of J. Edgar Hoover in his heyday (when he kept dossiers of fifty million Americans, never threw anything out, and used the information to ruin the lives of, or otherwise punish thousands of people who either had crossed him or who he simply did not like). I have, and with this volume of information available to the Federal government, I frankly don't trust them never to abuse it.

Good points. IIRC, FISA came about at least partially in response to Nixon's enemies list (and Hoover's abuse of FBI power). There are good reasons for concern about the misuse of government power.

Drill Sgt,

Yes, the ultimate output would be to follow up on specific individuals because of patterns detected in the data. But I hold there's a difference between starting with an individual and collecting data, and starting with data which then leads to individuals.

Marty: I haven't read all your posts, but I hope you take into account the Supreme Court's acceptance of the way Jimmy Carter resolved the Iranian hostage crisis without explicit authorization. The Court in Dames & Moore really did lean toward supporting the President even though the statutes left out the particular option the President used. Beyond the statutory interpretation question that you emphasize, there is the issue of the President's inherent powers. That is, it could be a "category 3" case where the President deserves to prevail. In any case, don't you agree that Congress should NOW authorize the President to do the data mining, which seems valuable and important. I think Americans are supporting the President in this in decisive numbers and that Congress ought to give him the explicit authorization.

I’m going to venture a prediction that the result would be/already is that U.S. persons interested in preserving the remnants of their privacy (there isn’t any) will adopt certain encryption software (you can bet our adversaries already do) that will have the effect of masking any traffic that would represent a threat – like a needle lost in a haystack.

1. Although I don't know nearly enough about the topic to speak with any degree of confidence, I suppose I agree that Congress should authorize some form of data mining, although, as your original post indicates, the devil is in the details of building in protections against abuse, particularly in the storage of data. See Jack Balkin's helpful post here: http://balkin.blogspot.com/2005/12/data-storage-and-fourth-amendment.html.

2. As for the NSA program, the legal question is not, as in Dames & Moore, whether we might discern congressional authorization (Category I) where the legislature appears to have been silent, and is *not* whether the President could act in the absence of statutory authorization (Category II) -- he almost cetainly could, although, again, the hard questions thee would be in figuring out precisely when the Fourth Amendment requires warrants and/or probably cause.

No, the issues are whether the conduct was statutorily *prohibited* pre-9/18/01 -- it plainly was, as even DOJ concedes -- and then whether the AUMF authorized it, *notwithstanding FISA.* I think the answer to this last question is clearly "no."

3. So we are in Category III. You ask whether the President might actually win even at the "lowest ebb." Of course, the President has never won in Category III (see, e.g., Youngstown, Little v. Barreme); and I don't think there's a good argument for it here -- it would mean that FISA is unconstitutional, at least in wartime, a proposition that would contradict virtually unanimous understanding among the three branches (save Laurence Silberman) for almost 30 years. I think it's very telling that DOJ does not even venture to argue that FISA would be unconstitutional here. They simply make a weak gesture (one sentence) at a "constitutional avoidance" argument, without even bothering to suggest why the constitutional issue would be serious -- let alone more serious than the Fourth Amendment question that DOJ's reading of the AUMF would raise.

While the AUFA implicitly repealed FISA might be a legally weak argument, it's a good argument to make to the public.

The administration's argument is basically that after September 11 things changed and the gov't has to do this, which Congress realized and approved in their broad authorization in the AUFA, passed just after the Sept 11 attacks.

Most non-lawyers (and most lawyers) aren't going to believe or care that the legality of this turns on some quaint case when President Truman tried to take control of the steel mills near the end of the Korean War or some disco-era statute passed in the wake of Tricky Dick and JEDgar Hoover.

Congress is grumbling a bit, but if they can't turn a majority of the public on this issue in their hearings, which they probably can't, then this issue will fade away.

So are we just to take it on faith that "the National Security Agency has developed some powerful new tools against terrorist adversaries?" Can we get a little evidence first that these actions of (let's say) dubious legality are actually of any use whatsoever? Making a parallel to the oh-so-effective efforts of credit card companies to detect and deter fraud, does not exactly fill me with confidence.

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." And what would Ben Franklin think of those who give up liberty for no return whatsoever?

that's a good point. I guess the gov't could argue that, unlike Madrid and London, the U.S. hasn't been hit by Al-Qaeda since Sept. 11. Whether this surveillance/data-mining/tea-leaving reading is even partly the cause for this we'll really never know b/c it's pretty much impossible to prove a negative.

Also, what makes you think the safety that may be achieved is temporary?

"... what makes you think the safety that may be achieved is temporary?"

I think the safety that may be achieved is always temporary. If there ever was any benefit, then now that the techniques have been so bruited about, the benefit has been (or will shortly be) lost. You and I, on the other hand, who have no secrets to conceal (right?) will continue to be vulnerable, awaiting the inevitable abuse of this new power that the executive branch has arrogated to itself.

The evil that men do lives after them...

Anyway, I'm not asking for proof that the thing works: I'd just like some evidence. Just a little. That shouldn't be too much to ask, given the scope and potential for abuse inherent in techniques like this.

Then, if it still seems like a good idea, we can talk about how best to implement it, what are appropriate checks and balances, how oversight ought best be done.

I guess the difference between us is that I don't trust the executive (no matter who's in the WH) nor do I trust Congress or the Courts.

Oversight means overlook and checks and balances is BS because Congress does not want to be accountable anyway, and Courts are lawyers in dark robes, and who in their right mind trusts lawyers, especially those in dark robes.

"...the President has decided to treat our constitutional form of government with contempt by authorizing conduct that is plainly unlawful?"

1. If the conduct was plainly unlawful we wouldn't be arguing about it. My personal opinion is that it is within the scope of Presidential powers. Until it gets taken to SCOTUS, it's all just talk. Neither the Congress nor the President, nor the Democrats nor the Republicans can do more than opine.

2. Someone explain to me what liberty I have given up. One hears many 'the sky is falling' metaphors regarding liberty and the Patriot act and now the NSA data mining but no one can claim any specific harm just the "potential" for abuse. There's a lot of potential out there but until someone can cite some ordinary American who has been abused it's seems a lot of hysterics to me.

Finally, is there some reason why people find it necessary to insult Ann on her own blog? What's up with that? If you don't like Ann's opinions or have issues with her intellect go somewhere else. Personally, I can't understand all the blather about her conservatism when Ann is plainly a moderate. ;o) Partisans on the left and right are losing their ability to think clearly when people can't disagree with a position without being subjected to snarky remarks.

Marty: I'm still not convinced that it is obvious that if the legal issues were fully briefed and argued that the Supreme Court would reject the President's argument. As it stands now, he's made his interpretation, and it is within his role to interpret the law. Presidents typically make strong statements of the extent of their power, and I think the realistic need for the program would go a long way to convince the courts. The courts may never deal with the question, so it seems to me that it is up to Congress to act as a body now. It could be explicit and refute the President's position with legislation, but I think the one thing that is most obvious is that Congress will not do that, because it would be quite politically unpopular. Legal analysts like you are trying to interpret the existing texts to say that there is already a direct conflict with Congress, and that Congress need not do anything for the President's position to be defeated. But what I've been saying is that Congress needs to act, and, of course, I also think that what it should do is support the President's program. I'm being more of a realist here, and I think that is quite appropriate for matters of national security. I think Dames & Moore supports this. I know you think your position is strong, based on textual analysis, but I don't see that winning the day, in the end.

"... no one can claim any specific harm just the 'potential' for abuse. There's a lot of potential out there but until someone can cite some ordinary American who has been abused it's seems a lot of hysterics to me."

I thought we were all being remarkably calm, for a bunch of bloggers.

But turn your comment around, please: until someone can cite some evildoer who has been thwarted, or at least until someone can put forth some sort of rationale for "mining" this "data" ... then it seems a policy without a justification.

Bad points: theoretical but fairly obvious potential for infringing civil liberties or at the very least privacy.

Good points... show me.

Still it remains unanswered: why does anyone think this is a good idea?

It could be explicit and refute the President's position with legislation, but I think the one thing that is most obvious is that Congress will not do that, because it would be quite politically unpopular.

Each branch will probably act to strengthen that branch. Congress will probably take the view that Marty Lederman takes saying that they already HAVE made the legislation that explicitly denied the President his actions. Given that Congress' POV, backed up by Lederman and Kerr and Rudman and Barr and others is that they passed legislation denying the President his actions and that he is defying them, why on earth would they pass new legislation?

In fact, what you are calling for is for Congress to unilaterally disarm and weaken themselves in order to support the President in a time of War.

Ann, if Congress acts instead with hearings that could possibly end in either charges or exoneration, will you support that? Will you support that as "Congress acting as a body?"

Ann, when will this war end? With Osama's capture? With a democracy in the mid-east? When the number of terror attacks is on a steep decline for how many years in a row?

Can you create an operational definition for the end of the war on terror?

Are [you, Ann], agreeing, then, to give the king unfettered privilege to defy the law forever?

Ann, you are supporting a campaign of fear, you are supporting a campaign that is destroying the country that you and I grew up in, that our relatives and ancestors fought for. That the world was proud of.

If, back in 2001, anyone had told me that four years after bin Laden's attack our president would admit that he broke U.S. law against domestic spying and ignored the Constitution -- and then expect the American people to congratulate him for it -- I would have presumed the girders of our very Republic had crumbled.

Had anyone said our president would invade a country and kill 30,000 of its people claiming a threat that never, in fact, existed, then admit he would have invaded even if he had known there was no threat -- and expect America to be pleased by this -- I would have thought our nation's sensibilities and honor had been eviscerated.

If I had been informed that our nation's leaders would embrace torture as a legitimate tool of warfare, hold prisoners for years without charges and operate secret prisons overseas -- and call such procedures necessary for the nation's security -- I would have laughed at the folly of protecting human rights by destroying them.

If someone had predicted the president's staff would out a CIA agent as revenge against a critic, defy a law against domestic propaganda by bankrolling supposedly independent journalists and commentators, and ridicule a 37-year Marie Corps veteran for questioning U.S. military policy -- and that the populace would be more interested in whether Angelina is about to make Brad a daddy -- I would have called the prediction an absurd fantasy.

That's no America I know, I would have argued. We're too strong, and we've been through too much, to be led down such a twisted path.

Ann, this is no path for a Constitutional Law Professor to be leading us along.

Also, for those pious souls on the right who want to excuse the President for failing to abide by the law in this case, I have a couple of quotes:

What law exactly did the President break? If Congress passed a law by 2/3rds vote that said Bush had to submit his decsions to Congress for approval about strategy in foreign policy, would Bush be breaking a law if he decided not to seek approval for his foreign policy?

Did Bush break the same law that Clinton and Carter did. Is he a law breaker like Lincoln and FDR.

I am urging all liberals to run on a platform this fall that Bush should be impeached for breaking the law of not seeking a wiretap to listen to communications from foreign terrorists. It sounds like a campaign winner.

I can hear the sucking sound of the democratic party...somewhere with the whigs and the federalists.

"...Ann, when will this war end? With Osama's capture? With a democracy in the mid-east? When the number of terror attacks is on a steep decline for how many years in a row?..."

This is a great question. Quxxo is obviously implying the war will never end. However, I think it will. At some point (in the near future) Al Qaeda will cease to exist as a movement. Al Qaeda's defeat in Iraq is such a massive loss that the whole attraction to Al Qaeda could dissipate quickly. How will they be able to recruit when the seat of the caliphate has been lost and when the battle wasn't even close.

If it is no longer "cool" in the arab world to support Al Qaeda, the ideology will die a quick death. The loss in Iraq is quickly making Al Qaeda a "weak horse" and very uncool.

Very few, including myself, who supported the war expected the devestating insurgency in Iraq. However, we also never dreamed that there would be 70% turnout in national elections - or in otherwords, overwhelming legitimacy for democracy so soon). (20% would have been great!).

It is becoming clear that blowback from the insurgency has been the massive demand for democracy.

In the constant refrain that Bush et al. are breaking the law here, what seems to be missed is that if the issue actually got to the Supreme Court, I think it highly unlikely that they would rule against the Administration. Why? Working backwards, the Administration is essentially making two arguments, that AUMF effectively amended FISA, and that this is within the President's inherant War Powers.

So, in order for them to rule against the President, they would have to find against it on both points. But the later is a classic separation of powers issue, with Congress arguably overreaching. Add to this that we are at war, and the Court knows that, and knows that this has the support of a majority of Americans.

Adding to their usual reluctance to get involved in this sort of argument, with that many Americans believing that this is legitimate in war, ruling against the President would tend to diminish the standing of the Court itself - giving the impression that they are more worried about form over substance, and not concerned that we are at war.

The result then, is that they have every incentive to not reach the second prong, which leaves ruling for the Administration on the first one, that NSA is acting within the FISA as effectively amended by the AUMF.

Marty's insistence that this is a Youngstown Category III issue then ignores that the Supreme Court has every incentive to keep the dispute out of that category.

I should add that the Administration has argued that the FISA warrant requirement does not work in the NSA context, esp. given the time lags involved in the technology. And thus, arguably, Congress has not given the President a viable alternative here, as had been given President Truman for seizing the steel mills - which potentially brings the dispute into a quasi-Category II.

In conclusion, I don't think it the least bit likely that the Supreme Court is going to keep NSA from tapping phone calls between terrorists outside the U.S. and people within during a time of war, and esp. in view of the 9/11 attack.

Back a bit more on-topic. It would be nice if Congress would look into the matter and, in particular, authorize the type of data mining that Ann mentioned. But I don't see that happening unless they open the debate up to other NSA evesdropping activities.

In the end, I don't see the Republicans in Congress thwarting the President in his conduct of the WoT. To do so would weaken him, and, thus, the Republican Party, as well as our war efforts.

Obviously, that isn't going to sway many of the Democrats. In the House, this is moot, given the Republican majority. But the Senate, given filibusters, is a different matter. The question I see is whether the Republicans can pick up enough Democrats to overcome a filibuster, and whether the Democrats in the Senate are foolhardy enough to stage one.

That said, if it did so happen that a bill authorizing the President's actions, whether in data mining, or other evesdropping, by the NSA, passed the House, as it likely would, and was filibustered in the Senate, where would we be sitting then?

Could the Supreme Court seriously treat any subsequent litigation as Category III, given that the "Will of Congress" was more in line with the President's actions, than opposed to it, but the bill only failed to pass due to a filibuster by less than half of the Senate?

Obviously though, if such a bill were to fail in both Houses, then a much stronger Category III argument could be made - that Congress had truly spoken on the matter, and that it was opposed to the President's actions. Ditto for passing anything that amends FISA and reiterates these restrictions (which I don't see happening).

It will be interesting to see what happens. I don't see Congress resolving this question. Little to gain, and some possible downside. Rather, a lot of bluster, but, in the end, no real action.

I agree with your comments and think many of the fine arguments of rules of staturtory construction are a bit off point.

When I practiced, I viewed my job before an appellate court, and particularly the Supreme Court, as being to (1) convince the court that they ought rule my way as a matter of policy and then (2) show them a way to get there. If I won on the policy argument, I usually felt pretty confident of the legal argument -- even if by itself it was weak.

As you enumerate. there are very strong policy reasons why the Supreme Court is going to buy something like Gonzales' argument.

The reasons would be overwhelming were there another terrorist attck in the U.S.

I suspect that the Supreme Court might "codify", so to speak, some of the particular facts that are present in what Bush has done. For instance, I regard it as very important that Congress (or at least 14 members) were informed, and I regard it as equally important, according to General Hayden's statement, that the decisions of whom to tap were made at the operational level by the operational NSA people.

The first circumstance is important so that Congress is not so kept in the dark that it has no opportunity at all to object or act. The second is impoirtant to keep some assurance that the targets are not political.

It's not as if Congress, when it enacted FISA, was insensitive to the fact that more aggressive forms of electronic surveillance might be necessary or desirable in times of war.

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If Congress is so tech savvy, why did the Patriot Act have to extend electronic surveillance procedures for dial up internet to cable internet? Why has it taken the FAA decades to modernized critical air safety systems? Why is the FBI unable to electronically manage criminal case records. Lets face it we are not being governed very well and it is not keeping us safe.